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Water crisis litigation quickly accumulates

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The chemical spill that contaminated water in nine West Virginia counties quickly entered a new phase: litigation.

Nearly two dozen lawsuits have been reported so far, the first filed less than 12 hours after a "do not use" order was issued to customers of the West Virginia American Water Company because 7,500 gallons or more of 4-Methylcyclohexane Methanol had leaked from a storage tank at Freedom Industries' Etowah Terminal in Charleston into the Elk River Jan. 9.

All of the claims name Freedom Industries as defendant; some include WVAWC. At least one also is targeting the maker of the 4-Methylcyclohexane Methanol.

Most of the suits were filed by local attorneys, although at least one New York-based firm that specializes in mass tort has put out feelers.

The Warner Law Offices in Charleston and Fitzsimmons Law Offices in Wheeling, which filed suit Jan. 10, withdrew it three days later, saying they'd been advised other complaints had been filed and were comfortable that, "the lawyers that filed these other claims are excellent lawyers who will assuredly hold any corporate wrongdoers accountable for the harm and damage they have caused here in West Virginia."

"In terms of liability, the lawyers will be looking for deep pockets, those that have the resources to remedy the injuries of those who have losses," said West Virginia University Law Professor Patrick McGinley. "In reading various news accounts … several suits have already been filed, and in most, WVAWC was named as a defendant."

Some of the suits claim business losses, while others seek damages and medical monitoring for individuals who ingested or were exposed to the tainted water. At least one seeks compensation for a canceled surgery.

Among the filings:

 

  • Charleston resident Daniel Cleve Stewart sued because his kidney transplant had to be canceled, claiming negligence by Freedom Industries and WVAWC exposed him to continued pain and suffering. Stewart's suit, filed in Kanawha County Circuit Court by Forbes Law Offices and The Sutter Law Firm, said his Jan. 10 transplant was nixed because he unknowingly consumed some of the contaminated water.
  • The Webb Law Firm and DiTrapano, Barrett, DiPiero, McGinley & Simmons filed a class action lawsuit in Kanawha County seeking damages for businesses impacted by the water emergency.
  • Charleston's 5 Corners Cafe and The Vintage Barber Shop are seeking damages from Freedom Industries for themselves and other businesses harmed by the water emergency, claiming breach of duty, negligence, concealment and fraud by Freedom Industries, strict liability, while Kanawha County resident Laura Gandee wants medical monitoring and damages for anyone who ingested or was otherwise exposed to the 4-methylcyclohexane methanol in the tainted water. Both were filed in Kanawha County Circuit Court by Kathy Brown Law.
  • The first to file, EJ&K Enterprises and South Hills Market & Cafe, are seeking damages from Freedom Industries for themselves and others in the food service industry impacted by the mandatory shutdown. The class action was filed in Kanawha County Circuit Court by Mani, Ellis & Layne and The Sutter Law Firm, both of Charleston.
  • The Bell Law Firm filed class-action complaints Jan. 10 in Kanawha County Circuit Court.

 

"My preliminary discussions — were with knowledgeable individuals, including a chemical engineer and a highly placed medical doctor," Bell said. "Both expressed strong concerns about what has transpired."

 

  • A multi-plaintiff complaint filed in federal court by Charleston-based Thompson Barney and the Phoenix, Ariz. law firm of Bonnett, Fairbourn, Friedman & Balint wants the contaminants removed from the Freedom Industries property, a risk assessment done for properties upstream of WVAWC's water intake and a toxicological analysis of the risks to human health, as well as compensation for businesses that suffered economic losses, residents exposed to the chemicals or who incurred expenses for travel and alternate living arrangements; and non-residents who were exposed. Named as defendants were Freedom Industries, WVAWC, the maker of the chemical, Eastman Chemical Co., along with Gary Southern, who, the suit alleges, directed operations and had an ownership interest in Freedom Industries.

 

Most seek class-action status, which allows the court to "join together similar claims and resolve them in the context of one case or a few cases that have core, similar issues," McGinley explained.

"In the context of the chemical spill in Charleston, literally tens of thousands of people have been affected and thousands of businesses have lost profits or been harmed in some way," he said. "Trying those cases, if each were handled individually, would take up all of the court's time for years."

McGinley, who specializes in environmental law, said it's not always easy to establish damages, "but here, I think, with everybody in the Kanawha Valley who's experienced this ... it would be difficult to get a jury that's not sympathetic."

Hours after the news broke, U.S. Attorney Booth Goodwin said investigators already were looking into exactly who knew what, and when.

"My office will continue working as quickly as possible to find out exactly what happened here, including the complete timeline of the release and what was done — or not done — before and after it," Goodwin said in a Jan. 13 statement. "... If our investigation reveals that federal criminal laws were violated, we will move rapidly to hold the wrongdoers accountable."

West Virginia Attorney General Patrick Morrisey also launched an investigation into the spill, saying it's important "that West Virginians have answers to their questions about what happened, why it happened and how this could have been prevented."

McGinley said the timelines that are developed will undoubtedly impact liability and the extent of damages. 

"Insurance companies are going to be involved, you're probably looking at potentially maxing out all of the insurance coverage in this case," he said. "It's going to be enormous."

The West Virginia Office of Disciplinary Counsel, meanwhile, issued a reminder that lawyers or those acting on their behalf are prohibited from in-person or telephone solicitation with prospective clients with whom they have no family or prior professional relationship.

Rachael L. Fletcher Cipoletti, chief lawyer disciplinary counsel, said communication may be done by mail or recorded message, "but it must clearly be designated as ‘advertising material' and may not involve coercion, duress or harassment." 

Violations may be reported to the Office of Lawyer Disciplinary Counsel by calling (304) 558-7999 or, online, at www.wvodc.org.